The Occupational Safety and Health Administration (“OSHA”) announced on March 1, 2012 that its Office of the Whistleblower Protection Program (“WPP”) will now report directly to the Department of Labor’s Office of the Assistant Secretary, rather than to its Directorate of Enforcement Programs. The restructuring signals an elevated priority placed on enforcement of the whistleblower protection laws falling under OSHA’s jurisdiction, and suggests that the Agency intends to devote increased efforts and resources to this area in the future.
WPP Had Not Been Sufficiently Meeting Its Mission to Protect and Incentivize Whistleblowers
OSHA’s WPP is responsible for enforcing the various whistleblower protection provisions of twenty-one separate federal statutes. These include such laws as the Occupational Safety and Health Act, Sarbanes-Oxley, and the Affordable Care Act, and they offer protections to employees who bring to light violations of a wide variety of laws, including airline safety, environmental remediation, food safety, public transportation and railroad, maritime and securities laws. While some differences exist between the details of the particular statutes, in general they prohibit an employer from terminating or otherwise discriminating or retaliating against an employee who reports or provides information regarding a suspected violation of the law, either to internal audit personnel or to the government. The statutes vest OSHA with jurisdiction to investigate complaints of retaliation against whistleblowers, and to award appropriate relief which frequently includes reinstatement, attorneys’ fees and costs, compensatory damages, and in some cases even punitive damages.
A pair of Government Accountability Office audits in 2009 and 2010 had identified substantial problems with the WPP. In particular, an August 2010 GAO Report No. 10-722, titled “Whistleblower Protection: Sustained Management Attention Needed to Address Long-Standing Program Weaknesses,” found that “OSHA has done little to ensure that investigators have the necessary training and equipment to do their jobs, and that it lacks sufficient internal controls to ensure that the whistleblower program operates as intended.”
OSHA Revamp WPP to Increase Protection and Incentives for Whistleblowing Activity
Spurred in part by these findings, OSHA conducted an internal review of its program, part of an overall plan to fortify the WPP and its operations. In September 2011 OSHA issued an updated Whistleblower Investigations Manual, and as of the Fiscal Year 2012 budget OSHA has established a separate budgetary line item for its WPP. Announcement of the restructuring and new reporting lines marks yet another key milestone in OSHA’s revamping of the WPP. Assistant Secretary of Labor Dr. David Michaels, who heads OSHA and will now directly oversee the WPP, said that “OSHA’s internal improvement initiatives, including this realignment, demonstrate the agency’s steadfast commitment to strengthening a program that is critically important to the protection of workers’ rights.”
The restructuring strongly indicates OSHA’s intention to bring more resources to bear in its enforcement of the whistleblower protection statutes it oversees. Employers can expect to see a growing emphasis on the WPP as a tool in the government’s law enforcement efforts, and a continued vibrancy in this area of employment litigation